Patterson and Repatriation Commission
[2005] AATA 770
•12 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/31
VETERANS' APPEALS DIVISION
Re: MARGARET PATTERSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 12 August 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G. D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ widow’s entitlement ‑ death from chronic bronchitis ‑ smoking ‑ whether war‑caused
Veterans’ Entitlements Act 1986 ss 8(1), 119 (1)(h), 120(4), 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Re Smith and Repatriation Commission [2004] AATA 733
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
12 August 2005 G.D. Friedman, Senior Member
1. This is an application by Margaret Patterson (the applicant), widow of Bernard James Patterson (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 12 October 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 23 April 2004 to refuse a claim for war widow’s pension because the veteran’s death was not related to his service.
2. At the hearing of this matter on 14 July 2005 Ms A. Magee of counsel represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T15), three exhibits (Exhibit A1‑A3) lodged by the applicant and three exhibits (Exhibits R1‑R3) lodged by the respondent.
BACKGROUND
4. The veteran was born on 15 May 1922. He served in the Australian Army (the army) from 14 January 1942 to 8 August 1946. Since he served in the Southwest Pacific, the whole of his service constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).
5. The veteran died on 7 December 2003. The cause of death was certified as:
· pneumonia/ respiratory failure ‑ 1 week;
· chronic airways disease ‑ 3 years; and
· recent bilary sepsis secondary to common duct stones ‑ 3 weeks.
6. At the time of his death the veteran received a disability pension of 10 per cent of the general rate for the following conditions, which were accepted as service‑related:
·old injury left ankle; and
·osteoarthrosis of the left ankle and foot.
7. The Department of Veteran’s Affairs (the Department) did not accept the following conditions as being war‑caused or defence‑caused:
·atrial septal defect;
·conductive deafness right and left (suggestive of otosclerosis);
·otosclerosis affecting both ears;
·varicose veins of the right leg; and
·chronic airflow limitation.
8. In 1996 the veteran made a claim to the Department to have chronic airflow limitation accepted as war‑caused. The claim was refused. The veteran did not seek review of that decision. On 4 March 2004 the applicant lodged a claim for widow’s pension. On 23 April 2004 the respondent refused the claim on the basis that the veteran’s death was not related to his service. On 29 June 2004 the applicant sought review of the decision, and on 30 June 2004 the respondent affirmed the decision. On 29 June 2004 the applicant applied to the VRB for review of the decision. On 12 October 2004 the VRB affirmed the decision. On 14 January 2005 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
9. The issue before the Tribunal is whether the veteran’s death was war‑caused as a result of his smoking during operational service.
EVIDENCE
10. In a Claimant Report-Cigarette Smoking dated 23 August 1996 (T5, pages 16‑17) (the Claimant Report) the veteran stated that he first started smoking cigarettes on a regular basis on 5 May 1940 (his 18th birthday) and smoked 10 regular or tailor‑made cigarettes per day and 2 oz. of tobacco per week in roll‑your‑own cigarettes. He said he began smoking cigarettes on a regular basis due to Peer pressure. The veteran stated that he stopped smoking in 1970.
11. A document labelled Medical History-Part 2 dated 21 April 1960 (Exhibit R1) (the medical history), written by a medical practitioner about the veteran, for the then Repatriation Department contains the following notation: Tobacco 8-10/day.
12. In a letter dated 20 August 1971 (Exhibit R2, page 52) Dr R. Brown, the veteran’s then general practitioner, stated that the veteran is a moderately heavy smoker.
13. In a written statement dated 10 March 2005 (Exhibit A1) the applicant said that the veteran was a smoker when she met him in 1952. They were married in 1954. She said that she was aware that he had completed a form in which he stated that he had smoked from the age of 18, but they never discussed the date he began smoking or the circumstances of any increase in his smoking habit.
14. In oral evidence the applicant stated that the veteran ceased smoking in about 1970, when he underwent major heart surgery. She told the Tribunal that the veteran’s 1996 application was completed with the assistance of a member of the Returned and Services League (RSL), and she had no idea of the date he started smoking. The applicant said that the veteran was a heavy smoker; and he smoked tailor‑made cigarettes, a pipe and occasionally a cigar. She was not able to estimate the number of cigarettes the veteran smoked each day.
15. Under cross‑examination the applicant agreed that she had not taken much interest in the level of the veteran’s smoking habit and was unable to state whether he had increased his smoking after his service. She agreed that at the VRB she stated that she was only guessing when she mentioned that it was her belief that the veteran commenced smoking on service. She described him as an honest person.
16. In a written statement dated 6 October 2004 (T14, page 48) Ms H. R. Patterson, the applicant’s daughter, said that she had distinct memories of the veteran smoking a pipe at least once each night, and a cigar at least once each week during her childhood in the 1960s and 1970s. She stated that he told her when she was young that he had taken up the habit in the army to imitate the United States’ Army General McArthur who smoked a corn-cob pipe during World War 2. Ms Patterson said that the veteran also smoked Drum roll‑your‑own cigarettes. In a further written statement dated 10 January 2005 (Exhibit A2) Ms Patterson said that the veteran often mentioned cutting other soldiers’ hair in the army in exchange for cigarettes, or money to buy cigarettes. She stated that the veteran rarely spoke about his time in the army in any detail.
17. In oral evidence Ms Patterson said that the veteran did not discuss his smoking habit when he was in the army with her. Under cross‑examination Ms Patterson agreed that the veteran had not mentioned to her at any time the date he started smoking.
18. In a written statement dated 10 January 2005 (Exhibit A3) Mr J. Suva, the veteran’s brother‑in‑law, said that he met the veteran in 1952 when both of them were working for the Postmaster‑general’s Department (now Telstra Corporation) as linesmen. He said that they had remained friends and he had married the veteran’s sister. He said that the veteran had told him that he began smoking on a social basis at the age of 18, but had become a heavy smoker in the army because of peer pressure and the ready availability of cigarettes. Mr Suva estimated that when they were working together the veteran used to smoke about 50 cigarettes per day.
19. In oral evidence Mr Suva stated that he and the veteran were colleagues until 1954 and that he observed the veteran smoking heavily at work. Under cross‑examination he agreed that the veteran had not mentioned the 1996 claim lodged with the Department for disability pension. He also agreed that the veteran was an honest person.
CONSIDERATION OF THE ISSUES
20. Section 8(1) of the Act provides:
8(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
21. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s 120A of the Act. It provides:
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2)…
22. The principles to be applied, in cases where s 120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
23. Ms Magee submitted that, on the material as a whole, there is a reasonable hypothesis connecting the veteran’s chronic bronchitis with the circumstances of his smoking during operational service in the Southwest Pacific. Ms Magee acknowledged that the evidence relied upon consisted mainly of the recollections of family members, but noted that there had been no real challenge to the material that demonstrated that the veteran was a heavy smoker during and after service. She acknowledged that the level of smoking contained in the in the Claimant Report was inconsistent with evidence of a higher level of smoking. She suggested that the veteran may have been referring to cigarettes only, rather than the total tobacco smoked, which would include pipes and cigars. Alternatively, she said, the veteran may have been referring to the number of cigarettes smoked when he commenced the habit.
24. Ms Magee noted that the Claimant Report was inconsistent with the 1971 reference by Dr Brown to moderately heavy smoker; and that Dr Brown’s comments were supported by members of the veteran’s family, whose estimates were not disputed. She submitted that the veteran satisfied the criteria for the level of tobacco smoked, and the Tribunal should not be satisfied beyond reasonable doubt that the veteran’s death was not the result of a war‑caused condition (Re Smith and Repatriation Commission [2004] AATA 733).
25. Mr Purcell conceded that the veteran smoked at least 5 pack years of cigarettes, or its equivalent, before the onset of chronic bronchitis. However, he noted the general agreement that the veteran was an honest person, and submitted that the Tribunal should therefore accept the veteran’s statement from the Claimant Report that he commenced smoking because of peer pressure on his 18th birthday (before service), and continued to smoke at the same rate until he stopped smoking permanently in 1970. Mr Purcell stated that the applicant agreed that the veteran never discussed his smoking level with her, and that he was a smoker when she met him in 1952. He referred to the applicant’s evidence that she was not able to tell the VRB that the veteran had commenced smoking on service.
26. Mr Purcell submitted that the Tribunal should place little weight on the evidence from the applicant and other family members, and said that there was no material that linked the veteran’s smoking to his service.
27. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.
28. In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the correct approach, to be followed by the Tribunal, as follows:
…
(a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b) Next, the AAT was required to determine on balance of probabilities what “kind of death” Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death.
(c) If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death".
(d) If only a determination under s 180A(2) is applicable, then the application must fail.
(e) If no statement of principle and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.
29. In following the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because the applicant’s husband was a veteran, the veteran had died and the applicant is his widow. In relation to a determination, to the Tribunal’s reasonable satisfaction (s 120(4) of the Act), of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the causes of death were pneumonia/respiratory failure, chronic airways disease, and recent bilary sepsis secondary to common duct stones.
30. On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran included chronic bronchitis, identified in Instrument N° 30 of 2004. As there is a Statement of Principles (SoP) in force, the Tribunal is required to apply the methodology in Deledio to the kind of death.
31. The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities, under s 120(4) of the Act. There was no dispute between the parties that the applicant suffered from chronic bronchitis.
32. The Tribunal has considered each of the four steps from Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters that the material points to a hypothesis connecting the chronic bronchitis to the circumstances of the particular service rendered by the veteran.
33. In respect of the second step from Deledio, there was no dispute between the parties in relation to a relevant SoP and the Tribunal therefore finds that Instrument N° 30 of 2004 concerning Chronic Bronchitis and Emphysema (revoking Instrument N° 73 of 1997) was in force and is relevant. The relevant factor is:
5(a)smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;
Paragraph 8 of the SoP states:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
34. In respect of the third step from Deledio, the requirement is for an opinion to be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at paragraph 54:
…
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
35. The Tribunal accepts that the applicant’s overall level of smoking satisfies the figure of 5 pack years specified in factor 5(a) of the SoP. In the circumstances the material and evidence is consistent with the template found in the relevant SoP and therefore the hypothesis is reasonable.
36. In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. The Tribunal accepts the evidence from the applicant and members of the veteran’s family that the veteran was an honest person and that he completed the Claimant Report to the best of his recollection and ability, unlike the situation in Re Smith where the Tribunal had grave doubts about Mr Smith’s truthfulness. The Tribunal accepts the answers given by the veteran in the Claimant Report. The Tribunal also takes into account the 1960 medical history document that refers to Tobacco 8‑10/day.
37. The Tribunal accepts the evidence from the applicant that she and the veteran never discussed the circumstances or commencement of his smoking habit, and that she was guessing when she said that he commenced smoking during service. Mr Suva did not know the veteran during service. The veteran’s daughter was not able to provide evidence of the commencement of the veteran’s smoking.
38. Therefore, the Tribunal finds that the veteran commenced smoking in 1940 at the age of 18 years, which was before his service, and that he continued to smoke until 1970.
39. The Tribunal takes into account the beneficial nature of the Act, the passage of time, the deficiency in official records and that direct evidence from the veteran was not possible (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1)(h) cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that there is no evidence of the facts necessary to support the applicant’s application. Therefore, s 119(1)(h) of the Act does not assist the applicant such as to enable the Tribunal to find in her favour.
40. For these reasons, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between the veteran’s smoking and operational service during the relevant period. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied, and the claim does not succeed.
DECISION
41. The Tribunal affirms the decision under review.
I certify that the forty-one [41] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 14 July 2005
Date of decision: 12 August 2005Counsel for applicant: Ms A. Magee
Solicitor for applicant: Williams Winter Solicitors
Counsel for respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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